Legal Issues

Radical pro-abortion Supreme Court Justice Ruth Bader Ginsburg gave an interview to the New York Times over the weekend in which she discussed the recent ruling that overturned Texas’ law that required abortion facilities meet the same basic standards of health care that other outpatient surgical facilities would. The argument for overturning the law held that it would force the closure of the vast majority of abortion facilities in Texas.

“I wanted to highlight the point that it was perverse to portray this as protecting women’s health,” she said of the challenged requirements. “Desperate women then would be driven to unsafe abortions.”

Why were the only two options keeping open the facilities as they were or closure? What about the third option of making the facilities, you know, safe? Would we accept the same argument for hospitals in general? “We can’t require hospitals to follow basic medical standards for safety because they’ll have to close and people will go to witch doctors.”

When it comes to abortion every bit of common sense goes right out the window.

At the end of another disastrous Supreme Court term, one in which the judicial giant, Antonin Scalia, was lost, the Court handed down a terrible decision written by Justice Anthony Kennedy that overturned Texas’ law that put abortion clinics under the same sort of regulations that other surgical clinics have to abide by. This sets back the cause of saving live of babies yet again and puts even more women at risk of another Kermit Gosnell mass murder situation.

It’s been a year since the end of the previous Supreme Court term, in which they disastrously created a constitutional right to marry someone of the same sex and so I wanted to revisit some of my thoughts from then to show how terrible the current bench is and why it’s so important we get better justices.

"In forming a marital union, two people become something greater than once they were." – Justice Anthony Kennedy, writing in the majority opinion of the Obergefell v. Hodges ruling that legalized same-sex marriage.

Yes, that's called "children". The whole point of the State protecting and promoting marriage was to protect and promote children, which are vital to the continuation of the State. But ever since we legalized contraception, divorce, and abortion, we've eroded the reason and meaning of civil marriage. So now we come to this: Marriage now exists to magnify the most important thing of all: The All-Glorious Me! And children, for many people–heterosexual and homosexual alike–exist for the same reason: to reflect on Me! and how they make Me! feel.

The State will soon issue each of us a reflecting pool in which we can gaze at ourselves to our heart's content while everything crumbles around us, unheeded.

(Yes, infertile unions are still valid civil marriages because they bear the potential and the meaning of childbearing. It's a complicated philosophical thought. Just turn on MSNBC and don't worry about it.)

Let’s also heap scorn on Justice Kennedy's purple prose at the end of his majority opinion: "Their hope is not to be condemned to live in loneliness." Yep, that's right. Suddenly the US Constitution's job is to ensure that people aren't lonely.

It's not the Nanny State. It's the Yenta State, validating your love and making sure you aren't lonely.

By the way, I wonder how all those happily single people feel about being "condemned to live in loneliness."

Finally, a few quick thoughts:

It’s time for the Church to get out of the civil marriage business. See the Justice of the Peace to get the legal document, then go to the church for the sacrament.

Homosexuals make up less than 3% of the population of the US. It’s not going to be a large number of marriages. But be prepared for advertisers and Hollywood to have them show up everywhere.

We lost this battle when no-fault divorce was legalized and with the acceptance “sweet mystery of life” clause (so-dubbed by Justice Antonin Scalia) in Planned Parenthood v. Casey, not coincidentally also written by Kennedy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” By that way of thinking, anything at all is permissible.

A New York legislator is proposing a new law that would mandate the creation of a device, similar to a Breathalyzer, that instead of detecting blood-alcohol level instead analyzes mobile phones to determine if they were being used before a crash. He calls it the Textalyzer.

It would work like this: An officer arriving at the scene of a crash could ask for the phones of any drivers involved and use the Textalyzer to tap into the operating system to check for recent activity.

The technology could determine whether a driver had used the phone to text, email or do anything else that is forbidden under New York’s hands-free driving laws, which prohibit drivers from holding phones to their ear. Failure to hand over a phone could lead to the suspension of a driver’s license, similar to the consequences for refusing a Breathalyzer.

Keep in mind, this device doesn’t yet exist, except as a prototype. Now, setting aside all the privacy and constitutional concerns–which are not insignificant–the fact is that this legislation is technologically unworkable. Despite the claims of the company creating the Textalyzer software, this is no simple task, if only because it has to work for every brand of mobile phone on the market. And has to keep up with every security update. And deal with increasing level of encryption. Not to mention sideloaded security apps that don’t go through the app store and designed specifically to defeat such measures.

Just because you can theoretically imagine a technology doesn’t mean that can be the basis for legislation. We don’t live in Star Trek and you don’t have Scotty/LaForge/O’Brien at your disposal to invent the solution by the end of the episode.

Massachusetts has its own religious liberty case going before its highest court on Tuesday. The case involves the Shrine of Our Lady of La Salette and the city of Attleboro. In 2012, the city declared that most of the shrine’s property, which includes wooded land, a conference center, gift shop, welcome center, and cafeteria, in addition to chapels and monastery, was not exempt from property tax because, in the town’s view, only buildings used for actual worship should be exempt. As Jeff Jacoby writes at the Boston Globe:

More is at stake in this dispute than a local Catholic shrine or Attleboro’s budget. The much deeper issue is this: Do religious organizations decide for themselves what they require for their devotional and educational missions, or do municipal tax authorities decide for them?

This is also at the heart of the Obama administration’s fight with the Little Sisters of the Poor, among others.

It isn’t only in pews and with prayerbooks that houses of God fulfill their role. Charity drives and interfaith dialogue, youth retreats and blood drives, marital counseling and religious bookstores — far from being peripheral to a church’s religious purpose, they often go to its essence. In the words of one Unitarian Universalist congregation: “The church has left the building.” That is what churches are supposed to do, and why Attleboro’s tax-grab must be rolled back.

Under the First Amendment, who gets to decide what constitutes the religion we are free to practice? And does the First Amendment protect our right to live out our religious beliefs or just merely or ability to engage in worship?

The Justice Department on Monday, on the same day Apple made a public defense of its refusal to create a hole in the security of iOS, asked a federal judge to put a halt to a hearing scheduled for Tuesday to demand the iPhone unlock hack. The Obama administration suggested that a third-party had come forward with a possible means to break into the iPhone of the San Bernardino jihadi terrorist.

“Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone,” the Justice Department wrote in the filing. “If the method is viable, it should eliminate the need for the assistance from Apple.”

Farook’s iPhone has a four-digit PIN that is preventing the iPhone unlock. The FBI are afraid the setting to erase the phone after a number of unsuccessful tries was activated, and want Apple to engineer a version of the operating system that could be slipstreamed onto the phone that would let them try all 10,000 possible combinations automatically without triggering a wipe. Apple has said that creating such a security hole would open the door to others figuring it out including criminals, would make every iPhone less secure against attack and hack, and would set a precedent that could allow less savory governments of other countries to demand similar access to an iPhone unlock hack.

This is interesting timing on the Justice Department’s part. I’m skeptical about this supposed third-party iPhone unlock hack. Perhaps they have seen the tide of public open shift against then. Perhaps they’re afraid of setting a judicial precedent if the case goes against them. I won’t be surprised if this case sinks out of the public eye, never to re-surface again.

This article written by me was originally posted in November 2012 to the Pilot New Media blog. After leaving that position, Pilot New Media was folded and the website is now defunct. I am republishing here some of my content that remains relevant.

One of the thorniest and most confusing topics when it comes to the use of new media by not just parishes and ministries, but everyone on the Internet, is copyright. What is copyright? How do I know what images, music, writing I can use on my website? If I find it on Google, does that make it fair game? If I’m not making money off of it, does that make a difference? The answer to the latter two questions is No, which surprises many people. This post should explain why.

Let us first stipulate that we’re not lawyers nor have we studied law and we are not offering legal advice of any kind. This post does not constitute endorsement by the Archdiocese of Boston or its associated organizations of any of the websites or pages we link or their explanations of copyright law. If you’re not sure what your legal rights are, please consult a lawyer. Parishes and ministries of the Archdiocese of Boston can contact the General Counsel’s office at 617–746–5672.

With that out of the way, let’s discuss some general information about copyright and copyright law. Since we’re most concerned with copyright in relation to websites, we’ll focus on photos, images, and written content.

What is copyright?

The current law governing copyright is in Title 17 of the United States Code, first passed in 1976 and amended many times since. It’s complex and long and suitable for lawyers. We’ll get in how copyright works in a second, but first let’s answer why we have it. Here is the brief explanation for why we have copyrights in the first place from a court ruling:

“the economic philosophy behind … copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors” Mazer v. Stein, 347 U.S. 201 (1954)

In other words, the reason we have copyright is so that people will make new things and get paid for doing them. In Christian parlance, we would quote Christ in the Gospels and say “the worker is worthy of his wages” (Luke 10:7; Matthew 10:7). People are entitled to benefit from their work. The incentive to create new works comes from the guarantee that the creator will receive remuneration for his work and craft. In addition, just because you have a good purpose for that person’s copyrighted work or you’re a nonprofit or can’t afford it or because other people are already violating their copyright, you still don’t have the right to use it without their permission.

The copyright owner has exclusive rights to control his work, even if he chooses not to sell, but that those rights are not all-encompassing. There are exceptions to those exclusive rights as defined by the law.

Fair Use

One of those exceptions to the copyright owner’s exclusive rights is the concept of fair use. While there isn’t a concrete definition of fair use in the law, William T. McGrath provides some guidelines in his article Copyright Issues in Today’s Church:

“…[T]he statute provides as guidance some illustrative examples of types of use that might be fair (such as criticism, comment, news reporting, teaching, and research)…”

“… [F]our “factors” that must be considered. These are: 1) the purpose and character of the use (i.e., is it commercial or nonprofit? is it transformative or is it very similar to the intended use of the original?), 2) the nature of the work, 3) the amount and substantiality of the portion used, and 4) the effect of the use on the market for or value of the copyrighted work.”

McGrath tells us that all four aspects must be considered. No single one is determinative, so for example that fact that you’re nonprofit doesn’t trump the other considerations.

Public domain

Public domain isn’t really an exception, but it refers to all the material not under copyright. It could be the copyright expired and wasn’t renewed (or eligible for renewal), there was never a copyright on the material in the first place for whatever reason–such as some materials produced by the U.S. Government–or the material was released by the creator into the public domain and he explicitly refused any copyright.

Creative Commons

Creative Commons is a relatively new approach to the use of original works online. Creative Commons encompasses all forms of copyright and public domain through various licenses that owners can place on their works. The licenses can be anything from public domain to attribution-only to noncommercial-only and several variants in between[1]. The idea behind Creative Commons is that it takes into account the reality of the Internet-age and digital copying, allowing creators to make their works available for use but still giving them ownership and control over how the material is used, if they wish.

Ignorance is no defense

It’s also very important to keep in mind that ignorance of the copyright is not a defense according to copyright law and precedent. A plea of “I didn’t know” likely will fall on deaf ears in court. You also shouldn’t assume that no one will notice your use of the item on your website or Facebook page or in the bulletin PDF that you upload to your website each week. Copyright owners have new technology at their disposal that crawl the web relentlessly searching out examples of their work that are being used without their permission. The first time you’ll hear from them is when you receive a letter in the mail from their lawyer with a demand to take it down and to send them a check for your allegedly infringing use.

How do I know the copyright status?

The short answer is that in the absence of a clear copyright or public domain notice, the safest assumption is that it is under copyright. Otherwise, look for a notice right on the photo, in the caption, or somewhere on the page referring to the copyright. Sometimes the whole website will have a copyright notice on it. Keep in mind that the presence of a copyright notice is not required for someone to maintain or assert ownership.

Keep in mind that just because what’s depicted in the photograph is old, it doesn’t mean the copyright for the image is expired. For example, the courts have ruled that a photograph of a painting cannot be copyright because there is not enough originality in thought or expression. A photograph of a portion of the painting plus additional content (e.g. a room) can be copyrighted, unless it is a derivative work of an existing copyrighted work. See how confusing this can be?

The rule of thumb is that for anything made before 1900, copyright had probably expired. Between 1900 and 1978, copyright may have expired. After 1978, copyright lasts for the life of the author plus 70 years.[2]

Finally, certain pieces of fine art or even architecture are themselves copyrighted and thus any exact photographs of them cannot be used without the original owners’ permission. An example of that is the famed Flatiron Building in New York City.[3]

Proper credit and attribution

There is no one correct way to provide proper credit and attribution for photos that you have permission to use, although if the owner of the work gives you text to use, you would do well to use that. Sometimes you can put the copyright notice right on the photo itself using an image editing program or you can put in a caption field or someplace on the page that makes a logical connection to the image. If the owner asks for a link to a website or page, then include that. And always provide the proper language for the license, whether it’s “Public domain”, “Used with permission”, “Creative Commons”, etc.

Where can I find images to use on my site?

All that said, there are sources for images on the Internet that won’t cost you an arm and a leg to buy the license for. Some are free and some have a nominal cost.

If you click on “Use this file on the web” next to the photo, Wikimedia will give you the HTML code you will need to either embed the photo on your site with proper credit and at a variety of sizes or, if you prefer to download the file and manipulate it and embed it yourself, the proper language (in HTML, optionally) for correct attribution. (Click on the image to see a larger screenshot of the Wikimedia page).

Flickr.com

Flickr is a large community of photographers who post their photos online and includes everyone from parents taking snapshots to the Archdiocese of Boston to the office of the White House photographer to the Library of Congress archives. Flickr was one of the first major photo sites to incorporate the Creative Commons license into its service. To search for photos that you can use, sign up for a free account then enter your search in the search box and click the button. Now, on the next page, click on “Advanced Search”.

On the subsequent page, scroll down, click on the checkbox for “Only search within Creative Commons-licensed content” and click the “Search” button. The resulting images should all have Creative Commons licenses. You just need to pay attention to licenses to make sure that it gives the proper permissions.

The results of a Flickr seach can be uneven. Some photos are of low-quality. Some are obviously copyrighted works that others have posted in violation of that copyright. Use prudence and good judgment when using these photos, but you should be all right.[5]

Pixabay

Pixabay is another resource for public domain photos and graphics. These tend to be more conceptual images rather than topical, so for instance, you’ll find general clip art when searching for “pope” but nothing when searching for “Pope Benedict”. (You’ll also see offers to for paid images from Shutterstock.com in your search results. We’ll discuss those services in a moment.) If you search for, say, “Advent” and find an image of candles and a wreath, you can then download the image and use it as you wish.

Stock photos

When you just can’t find the right image from all the free sources, sometimes you just need to turn to the professionals and pony up some cash. There are many commercials stock photo services available, some very expensive ones that cater to the professional publishing industry and others intended for those with a much lower budget. Here are a few that we’ve used at Pilot New Media that we’ve found useful:

In most cases, the photos you’ll get from these services are professionally shot. Most of these sites also provide stock music, sound effects, and/or video clips to use in various multimedia projects. Prices vary from $1 for a photo and up while a few also offer subscripton services. In general, you’ll only need these for very specific purposes, when you need that perfect image to illustrate a concept, perhaps for an event or a seasonal celebration.

A very specific kind of stock photo house is Art Resource. This company owns the rights to sell images of hundreds of thousands of pieces of fine art, including many famous masterpieces of Christian art, from . If you really must have, say, Caravaggio’s “Calling of St. Matthew”, you can license it, but it will cost you a pretty penny.

Other sources

Finally, you could just hire a professional photographer or find a talented and willing volunteer in your parish to take photos, if what you need is photos from parish events or people in the parish or the like. A professional photographer can be a good choice if you need staff headshots for the website, for example, because they usually know not just how to shoot the photo, but how to make the people being photographed at ease so the shot comes out best. Just be sure to talk to the photographer about copyright and your usage rights. Remember, the photographer usually retains copyright unless you and he explicitly agree otherwise in advance.

What not to do

We’ve covered this a bit, but it bears repeating: Just because you find an image (or poem or other work[6]) in a search engine doesn’t mean that you can just use it. It is likely still under copyright and even if it’s on a dozen different websites, unless you confirm otherwise, those websites either confirmed their right to use them with the owner, determined the photo was available for them to use, or they ignored their obligations under copyright rules.

Likewise, if something is labeled “royalty-free” it’s also not free for the taking. Royalty-free means that once you acquire the license to use the image (whether through purchase or permission), you won’t have to pay for each additional use.

Also “free clip art” doesn’t mean free. The images on clip-art CDs and clip-art websites are the property of their original owners and are often copyrighted, but the owners of the artwork have allowed it to be distributed freely. However, that art often comes with restrictions on use. For example, they may allow you to use them in your parish bulletin but not on your website. Be sure you understand any restrictions before using any image from them.

Bottom line

The Internet has given us access to professional-quality media to improve our websites and other communications like never before and at prices that are often in the reach of the tight budgets that Catholic ministries often work within. Yet, the ability to easily capture and copy digital media opens us up to the potiential to misuse that content like never before. We have not just a legal duty, but also a moral and ethical duty as Catholics involved in ministry to uphold those standards both to protect the Church from liability, but also as examples and role models for others.

There are many options available to us for inexpensive or free digital media that respect copyright. Are there any I’ve missed? Do you have questions about this area that we–as non-lawyers–might be able to answer?

There are a number of variants which you can read about here and here. ↩

A quick related tip: If you have trouble finding exactly what you want in Wikimedia, then do the same search in Wikipedia and click on the image found in the Wikipedia article. That’s what I had to do when searching for St. Francis de Sales for this post. ↩

One great resource on Flickr is the artwork of Fr. Stephen Cuyos, MSC, who produces graphics suitable for the liturgical season and made freely available for anyone to use. ↩

As we’ve said, it’s not just photos and artwork that are subject to copyright, but any creative work, including poems, news articles, books, recipes, and so on. Each has its own requirements and examples of fair use, which we don’t have the time to address right now. If you’re interested, please consult the general counsel’s office or an attorney, or Google “fair use” and the type of work involved. ↩

No legitimate reason. How about the reason that marriage is by definition between one man and one woman? And that if the state has any interest in legally recognizing marriage that it has a compelling interest in upholding its traditional definition as an underpinning of society for the procreation and upbringing of children, not to recognize the love between people or to uphold dignity or advance some cause.

Judge Garcia takes cover from the Supreme Court’s United States v Windsor decision which held that restricting the defintion of marriage and spouse to mean actual marriage and actual husband and wife as opposed to anything we damn well want to define them as is an unconstitutional violation of the Fifth Amendment’s Due Process Clause. However, even Garcia notes that “Regulation of marriage has traditionally been the province of the states and remains so today.” Yet, he doesn’t let that stand in his way.

In fact, Garcia claims that Texas’ constitutional amendment is “without a rational relationship to a legitimate governmental purpose” because the state’s lawyers failed to show how same-sex marriage affects real marriages. What it affects is children who are deprived of a mother and father. What it does is continue to codify the idea that marriage isn’t necessarily about creating stable families. (We can thank legalized divorce for starting that trend.)

What his little phrase reminds me of is what Justice Antonin Scalia calls “the sweet mystery of life” clause in the Planned Parenthood v. Casey decision that defeated our best chance in a generation to overturn Roe v. Wade in 1992: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Once you open that door, you allow anything. If I can define my own concept of existence, then any old thing we want to do becomes justified, consequences, history, biology, and law be damned. Be very afraid of where this trend will take in the next couple of decades because we’re becoming a country that my grandparents, never mind the Founding Fathers, would no longer recognize.

My half-joking reaction is to say that I hope Texas secedes before they’re successful in completely turning it into a carbon copy of all the rest of the states that are being turned into socially engineered liberal wastelands.

Most people I’ve seen have criticized Best Buy for being a big bully cracking down on a priest just trying to do his part in spreading the Word of God. But I’m not quite so ready to ding Best Buy completely. Now, I’m not necessarily a fan of the store. I don’t think much of their customer service or of their heavy-handed hard-sell of extended warranties. And I’ve heard horror stories of Geek Squad technicians rooting around in people’s private files while repairing computers.

However, in this case, Best Buy is only doing what a flawed trademark law requires it to do: protect its trademarks.

“This was a really difficult thing for us to do because we appreciate what Father Strand is trying to accomplish with his mission. But at the end of the day, it’s bad precedent to let some groups violate our trademark while pursuing others,” [Paula Baldwin, senior manager for public relations at Best Buy] said in an e-mail.

In fact, it’s not just bad precedent. They have to do it. I’m no lawyer, but it’s my understanding that if they don’t defend the trademark in all circumstances, then can lose the right to it. Just ask the owners of all these genericized trademarks about the need to defend.

Moreover, Best Buy is also apparently working with the priest to come up with a new logo that doesn’t infringe the Geek Squad trademark, while also accomplishing the goal of evangelization. I think that’s a pretty good solution. In this case, I don’t think Best Buy deserves the slings and arrows.

I was away when this hit the newspapers, but it’s still timely. A federal judge in Boston was furious with prosecutors at a sentencing hearing for filing felony charges in the conviction of someone hiring an illegal alien as a maid, instead of the usual misdemeanor. He called their handling of the case “aggressive and overreaching.”

“It was a cleaning lady,” U.S. District court Judge Douglas P. Woodlock said of the Brazilian maid hired by Lorraine Henderson. “A cleaning lady. Not Al Capone.”

I might agree with the judge, except for one thing: The defendant in this case is Lorraine Henderson, who at the time was an official with the Department of Homeland Security’s Customs and Border Protection service and the regional director of the unit charged with keeping illegal aliens from entering this country through air and seaports in New England. She was convicted in March of one count of encouraging or inducing an illegal alien.

It would be one thing if the defendant were an average Joe who hired an illegal alien or even, as in this case, encouraged them to evade the law to remain an illegal in their employ. But it’s another thing when the high-ranking government official, entrusted by the people of this nation to enforce those very same immigration laws, undermines them herself and fails in her sworn duty to uphold them.

In this case, I think Judge Woodlock may be out of line. Could the prosecutors have filed for a lesser charge? Yes. But they didn’t because an egregious abuse of power demands higher accountability. Which a jury of Henderson’s peers apparently agreed with in March. Judge Woodlock better leave his outrage at the door, because it’s his job to enforce the law impartially as well.

I wrote a couple of days ago about an anti-bullying bill coming before the Massachusetts Senate that contained unrelated language adding “hate speech” about sexual orientation to the legal definition of libel. If passed, it could conceivably have opened up ordinary folks writing on web sites and in other places (people like me, in other words) to being used for holding Catholic views on homosexuality.

Fortunately, the offending language was removed just before the vote when the bill was re-written by the Senate Ways and Means Committee. The new bill, S2313, does not have any of the libel language in it.The bill, which passed unanimously, now goes back to the House for another vote.

Fr. Chip Hines and Dom Bettinelli are two different kinds of fathers talking this time about preparing for Advent and Christmas, Thanksgiving recollections, 20 years of Good Will Hunting, the NFL in the homestretch to the playoffs, and picks of the week.

Fr. Chip Hines and Dom Bettinelli are two different kinds of fathers talking this time about their experiences as Boy Scouts and Dom's boys joining Cub Scouts; Fr. Chip's latest health challenge; going to the Apple Store; watching Spiderman Homecoming and Cars 3; new Star Wars movies and a Lord of the Rings TV show.

Fr. Chip Hines and Dom Bettinelli are two different kinds of fathers talking this time about Halloween favorite candy and music and memories from childhood; birthdays; dying friends; seeing Alton Brown; car insurance; and the awkwardness of people singing to you.

Fr. Chip Hines and Dom Bettinelli are two different kinds of fathers talking this time about supervolcanoes and all the natural and manmade disasters we've been experiencing, the #MeToo social media campaign, hosting the chaplain for the Atlanta Falcons, visiting St. Anthony, religion on The Orville, and nobility on Star Trek: Discovery.

Fr. Chip Hines and Dom Bettinelli are two different kinds of fathers talking this time about California retreating, touching an angel, state house testifying, remembering Tom Petty, mourning for Las Vegas, and watching new TV shows for the new TV season.

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